And why it needs to be updated every year or at least with every life event that occurs.
People often neglect to give proper attention to their Will because it forces them to face their own mortality. Yet this is one of the most important documents necessary for estate planning.
Having a well-structured Will means you are taking care of your responsibilities and ensuring that your assets are distributed in terms of your wishes when you are no longer there, says Tony Hakime, senior manager of sales and distribution at Standard Trust.
A Will must be practical to the degree that it can be implemented. People often place restrictions on what a beneficiary is allowed to do with an asset, but in many instances, it can be quite difficult to carry out these instructions.
“One must ensure that the instructions are legally binding on the individual,” says Hakime. “You have to consider whether the beneficiaries can actually deal with the assets.”
People should also remember that the contract between the testator and a life insurance company takes precedence over a Will.
If a testator names their child as the beneficiary of a policy and leaves their estate to their spouse, the spouse may be in trouble if the estate does not have sufficient liquidity to cover the debt.
Getting it right
Hakime emphasises the importance of obtaining the services of a professional person who specialises in the drafting of Wills.
The wording is critical and getting it wrong can lead to hardship and even financial distress for the people left behind. Once you are dead, there is no opportunity to correct or amend something that is not clear.
“All too often people appoint a family friend or a family member as the executor of the estate. In many instances the master of the high court will insist on a professional person assisting the individual in winding up the estate.
“It is important that the person winding up the estate has kept abreast with changes in the relevant legislation and understands the tax implications,” says Hakime.
He points out that people with assets outside of South Africa might have a Will in the country where those assets are located. “It just makes it easier for someone on that side – a person well-versed in estate matters in that jurisdiction – to quickly attend to the administration of the estate.”
Keeping it safe
Many people choose to nominate the institution that drafted the Will as executor of the estate, and to keep the original document. If this is done, it is important that they inform their family where the document is.
If a person dies without a Will, the estate will be administered in terms of the Intestate Succession Act – and the assets will be distributed in a manner that was not of their choosing, says Hakime.
A valid Will has to be signed by the testator as well as two witnesses, and they must sign in each other’s presence. Witnesses must be at least 14 years old and may not be a beneficiary of the Will.
“The most common error is having the witnesses sign without being in each other’s presence,” says Hakime. “The act is quite specific that the witnesses must all be present at the same time when signing the Will.
“It can be difficult to prove at times, but again we encourage clients to ensure that they follow the correct sequence to eliminate any doubt about the process.”
Another error that can render a Will invalid is when amendments to the Will are not properly initialled by both the testator and the witnesses.
In South Africa there is freedom of testation and people are allowed to change their Wills as often as they please. It is good practice to review a Will at least once a year, but there are also some ‘life events’ that make a review necessary.
These include asset accumulation (a new property, valuable paintings or jewellery), getting married, having children or getting divorced.
If a testator dies within three months of the date of divorce it will be assumed that the testator intended to change the Will and any bequest to testator’s former spouse would be deemed to have lapsed. However, after three months of the date of divorce any bequest to the testator’s former spouse would take effect if the testator does not change the will.
“It only takes a few minutes to run through your Will to make sure it still contains the right information but it can make a lifetime of difference to your loved ones,” says Hakime.
This article is a general information sheet and should not be used or relied upon as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your financial adviser for specific and detailed advice. Errors and omissions excepted (E&OE)